JAGAT SINGH Vs. BABU RAM

JUDGEMENT

(1.) This second appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-defendant (hereafter referred to as 'the appellant') against the judgment and decree dated 19.11.1997 passed by the learned Additional District Judge (1), Kangra at Dharamsala, whereby the appeal of the appellant against the judgment "and decree dated 24.9.1994, passed by the learned Sub-Judge 1st Class, Dehra, decreeing the suit of plaintiffs respondents 1 and 2 (hereafter referred to as 'R-1' and 'R-2') has been dismissed and the said judgment and decree of the learned trial Judge have been affirmed.

(2.) Brief facts leading to the presentation of this appeal are that R-l and R-2 instituted a suit in the trial Court for declaration that they alongwith Mehar Chand, respondent-defendant No. 3 (hereafter referred to as 'R-3') are the owners in possession of land comprising Khata No. 114, Khatauni Nos. 330 to 338, kita 13, measuring 1-34-54 hectares, situate in Mohal Saund, Mauza Har and the land comprising Khata No. 175, Khatauni No. 410, Kita 7, measuring 0-49-33 hectares, situate in Mohal Har, Teh. Dehra, Distt. Kangra, with the consequential relief of injunction, restraining the appellant and defendant Pathanu, (who was added as defendant No. 2 in the suit but since having died is now represented by respondents 4 to 9), from interfering with the possession of R-1 and R-2. Case of R-1 and R-2, as made out in the plaint is that one Prema died on 21.7.1980, leaving behind R-1 to R-3 as his only legal heirs on the basis of Will dated 19.7:1990 which was duly executed by said Prema in their favour while he was in disposing state of mind. The said Will is stated to be the last Will of Prema and on the basis thereof, R1 and R-2 claimed that they alongwith R-3 were entitled to succeed to the land in suit. R- 1 presented the said Will before the Sub-Registrar, Dehra on 26.7.1980 for registration. The appellant resisted the registration of the Will and set up Will dated 15.1.1980 which is forged, false and fabricated. At the time of institution of the suit, both the Wills were pending before the Sub Registrar for registration. Thereafter, the defendants threatened to take forcible possession of the suit land and with a view to do so, assaulted R-1 and R-2 for which the appellant and others were charge-sheeted under Sections 447/427, 147/149 and 325 IPC. However, the offences were subsequently compounded and the appellant conceded the possession of R:l and R-2 over the suit land and also agreed not to disturb such possession till the adjudication of the dispute by competent Court. The appellant, however, did not finally concede the rights of R-1 to R-3. Hence this suit.

(3.) The appellant contested the suit. In his written statement, he raised the preliminary objections that the suit was not maintainble; that the plaintiff has no locus standi and cause of action to sue; that plaintiff is estopped from filing the suit and that the suit is not properly valued for purposes of Court fee and jurisdiction. On merits, it was admitted that Prema was the owner in possession of the suit land. However, inheritance of the suit land by respondents 1 to 3 has been denied and it has been claimed that mutation of inheritence has wrongly been attested in their favour. It was further averred that said Prema had executed a Will in favour of the appellant on 20.7.1980 and by virtue of the said Will, he became the absolute owner of the suit land and R-1 to R-3 have no right, title and interest therein. The institution of the criminal case as alleged in the plaint is admitted, but it is claimed that it was initiated in order to harass the family of the appellant. The claim of the plaintiff has, thus, been denied.